Plea Agreement Provision May Prevent Sentence Reductions

Federal rules now allow many who had been sentenced to harsh mandatory minimum sentences for crack to apply for a reduction in their sentences. A waiver of this potential right which had been routinely included in some federal plea agreements is expected to prevent some from applying.

The Buffalo News reported on Feb. 11, 2008 ("Battle Shapes Up Over Crack Sentences") that "Federal court officials took action last year to give a break to people convicted on federal crack cocaine charges. They enacted changes after years of complaints that crack sentences were exceptionally harsh and that African-Americans from poor, inner-city neighborhoods were the ones most likely to be convicted. But U.S. Attorney Terrance P. Flynn may oppose requests to reduce the sentences of previously convicted people, based on a legal waiver that is routinely included in federal plea agreements filed in Buffalo and Rochester. Dating to at least 1997, hundreds of federal drug offenders in the region have agreed to the waiver, promising that they would never ask for reduced sentences -- even if future changes in the law allowed them to do so. 'At this point, we haven't decided whether we will try to enforce the waiver,' said Assistant U.S. Attorney Joseph M. Guerra III, Flynn's top aide for drug prosecutions. 'We've talked about the situation with [Justice Department] officials in Washington, and we're waiting for guidance or directives from them.'"

According to the News, "If Flynn's office decides to fight the requests for reduced sentences, that will upset many defense attorneys and Frank B. Mesiah, president of the Buffalo chapter of the National Association for the Advancement of Colored People. By changing the guidelines, Congress and the U.S. Sentencing Commission have already made a clear statement that people convicted of crack cocaine crimes were being sentenced too harshly, Mesiah said. 'It would be wrong for [prosecutors] to challenge that,' Mesiah said. 'If the U.S. attorney follows that policy, he will be adding even more inequities to the system.' Similar comments came from Buffalo defense lawyers James P. Harrington, Mark J. Mahoney and Herbert L. Greenman, all of whom represent many local drug defendants. 'It would be unfair and unfortunate,' Harrington said. 'It would go against the spirit of what Congress and the sentencing commission were trying to do when they decided that these sentences should be reduced.' Harrington is the Buffalo representative on a national panel of attorneys who represent federal defendants who can't afford lawyers."

The News noted that "Ultimately, federal judges will decide on a case-by-case basis if defendants qualify for early release from prison. 'This issue [on the waivers] has not come before us yet. If it does come before us, we'll decide on it,' said Richard J. Arcara, chief U.S. district judge for Western New York. 'There are a lot of complicated issues surrounding the changes in the crack sentences. We're already looking at these issues, and we'll be deciding these cases as expeditiously and fairly as we can. It will be a high priority.' Judges will be looking at each individual's criminal history -- including the amount of drugs involved and whether any violent crimes were also involved -- before deciding whether to reduce sentences, Arcara said."